Category Archives: Lawyers, Law and Justice

Lawyers are frequent targets for humor, the butt of countless stale jokes. With the exception perhaps of “Wedding Crashers“, conflict resolution professionals so far have been spared the ribbing that comedians, cartoonists, and screenwriters so often heap on our brothers and sisters at the bar.

Is this a sign of the impending apocalypse? Hardly. As one anonymous commenter on Tom’s site observed, “Just getting the word ombudsman in cartoons raises awareness of our profession.” Or, as Oscar Wilde once put it, “The only thing worse than being talked about is not being talked about.”

In yesterday’s mail, among the bills, bank statements, and catalogs, I found a solicitation from a non-profit. The package it arrived in declared in bold red letters that my “signature is needed” (not to mention, no doubt, my cash) for a petition to halt some objectionable political action. Visible through the plastic wrapper was a pen, their gift to me.

No doubt you’ve received similar solicitations from other organizations. In the past they’ve sent me (and occasionally my dog) shiny nickels; return address labels; and (my personal favorite) a world map. Those who create these campaigns are hoping to take advantage of the principle of reciprocity, that universal force that compels us, almost beyond our will, to return favors done for us. Robert Cialdini describes its effect at length in his well known work, Influence: The Psychology of Persuasion, and how heavily humans feel and act from a sense of obligation. He writes,

The impressive aspect of the rule for reciprocation and the sense of obligation that goes with it is its pervasiveness in human culture. It is so widespread that after intensive study, sociologists such as Alvin Gouldner can report that there is not human society that does not subscribe to the rule. And within each society it seems pervasive also; it permeates exchanges of every kind.

Alas for these nonprofits, I have read Cialdini and am able to resist the compulsion to reciprocate, pocketing the nickels and applying the return address labels to my personal correspondence without the slightest twinge of guilt.

While this effort to influence my decision regarding charitable gift-giving failed to work in my case, science has exhaustively documented how effective its influence can be.

The force of reciprocity does much social good, allowing interpersonal and commercial transactions to flourish, leading to “a cluster of interdependencies that bind individuals together into high efficient units”, producing “social advances”, as Cialdini writes. Reciprocity, though, can be turned to a more sinister purpose. Bribes, kickbacks, and corruption are its unloved progeny.

While science perhaps acknowledges the influence and risks of reciprocity, law sometimes lags behind. And all too often these influences operate just beneath the radar of our own awareness. For example, despite having enjoyed a duck-hunting trip at the invitation of then Vice President Cheney, Supreme Court Justice Antonin Scalia refused to recuse himself from a case involving Cheney, confidently asserting, “I do not think my impartiality could reasonably be questioned.” Folks who understood something about the subtle powers of persuasion weren’t so confident. (See for example, “Psychology 101: A Remedial Class For Justice Scalia” (PDF), by Mahzarin R. Banaji, Richard Clarke Cabot Professor of Social Ethics in the Department of Psychology, and Carol K. Pforzheimer Professor at Radcliffe, Harvard University.)

Now, years later, psychologists and other social scientists are shaking their heads over another Supreme Court call, this one involving another form of influence: corporate campaign financing.

“The First Amendment confirms the freedom to think for ourselves,” said Justice Anthony Kennedy, reading the court’s 5-4 majority opinion on Thursday, finding that corporations and unions can freely spend money on campaign ads to defeat or elect federal candidates. The decision ends decades-old limits on political spending.

…

So, we might ask, how well does research suggest people “think for themselves” under the potential flood of political ads from that spigot?

“I don’t have any particular position on the ruling itself, but this justification for the decision is based on an incorrect assumption about how the mind works,” says psychologist Brian Nosek of the University of Virginia. “If the goal really was to increase the chances that citizens would think for themselves, then the decision should have been to ban partisan advertising completely.”

Nosek and his colleagues, Harvard’s Mahzarin Banaji and the University of Washington’s Tony Greenwald, operate “Project Implicit” which features an “Implicit Association Test” to measure unconscious beliefs, including political ones. The data from 7 million participants show so-called “undecided” voters have often already made up their minds unconsciously on who they will vote for, for example. And the team has also mapped congressional race outcomes nationwide against unconscious racial biases, finding that prejudices invisible to voters themselves swayed their decisions, rather than rational thinking.

“The (think for themselves) justification is ironic considering that the purpose of advertising — political or otherwise — is to persuade the viewer about a particular point-of-view,” Nosek says. “That is, the goal of the political ad is deliberately ‘not’ to have citizens thinking for themselves.”

Psychologists remain wondering when the legal system will catch up with the science. So might the rest of us.

A century ago, Dean Roscoe Pound famously exhorted the legal profession to transform its institutions of justice and adjust its principles “to the human conditions they are to govern”, “putting the human factor in the central place”.

I read those words in law school but failed to appreciate their meaning – until I began to work with clients as a lawyer. A teacher wrongly accused of sexual assault by a pupil. A physician discriminated against because of race and gender, then subjected to retaliation and threats of violence. Parents who lost their only child because of a driver’s recklessness. These were the human faces of the law. No longer capitalized Law with imposing marble columns, law became human, substantially more than case book and statute, precedent and logic.

I thought of Pound’s words and remembered the faces of these long-ago clients when I read a letter in this week’s Massachusetts Lawyers Weekly from an attorney reflecting on the human element in the practice of law.

He described an experience in a family law class while he was still a student:

On the first day of class, [the professor] chose me to play the role of the lawyer advising a women in distress who was seeking legal advice about divorce….[The professor] played the role of the distressed woman client.

I jumped right in with both feet. I asked how she was doing. Well, you couldn’t have scripted a better blunder to demonstrate her point, and she let me know it right in front of my 100 or so classmates – a moment that is burned into my consciousness and I fear always will be.

The [professor’s] point was that, as lawyers, we are providing a service – a legal service. We are not counselors, comforters or friends. What the client needs at that moment from us is a clear dividing line, something she can rely on in a world turned upside down: clear, precise, level-headed guidance.

Many years after this incident, learning that a client was suffering a recurrence of cancer gave this lawyer a fresh opportunity to reassess his professor’s advice, concluding that “things aren’t quite as simple in life as she would have had us believe”.

I realized at that moment that sometimes our clients need us not to be lawyers; they need us to be human beings.

I can only imagine what this law professor might have thought of practices such as collaborative law or mediation – methods of resolving disputes that very much put “the human factor in the central place”.

It’s hard to believe that a commonplace act of civility could have provoked such punishment – public humiliation in front of an entire law school class – an experience the letter writer has plainly never forgotten. Where in the Rules of Professional Conduct does it say that you must abandon your humanity in exchange for the Esq. that adorns the end of your name?

What an extraordinary lesson to impart to students: that professionalism and compassion are somehow mutually exclusive.

Bias does its greatest damage undetected, operating beneath the radar of our awareness or even contrary to our conscious intentions.

Bias can be costly, imposing what researchers have described as a “stereotype tax“, affecting everything from negotiating to hiring decisions. Unconscious bias can exclude qualified people from jobs or educational opportunities. Because of biases and assumptions about their counterpart on the other side of the table, negotiators are more likely to leave value on the table.

Bias is pervasive. It can be found where it is least welcomed, even in courthouses where justice should be blind and balanced, treating equally and with fairness all who come before the law.

I fear that some readers may believe that I wrote this post in gleeful delight, a mediator taking grim pleasure in diminishing public confidence in lawyers. But this post wasn’t motivated by schadenfreude. Instead, it was intended as wake-up call for my brothers and sisters at the bar.

These statements about lawyers pain me deeply. I’m an attorney myself, and proud to be one, and it hurts to hear them.

Countless attorneys every day do good work for their clients. The great majority of those who practice law are honorable, decent, hard-working people who take their oaths seriously and serve their clients with integrity and competent professionalism. The many attorneys I know personally are the kind of lawyers Atticus Finch would have been proud of.

What troubles me is the increasing number of people who are reporting to me frustrations with lawyers, and the number of people who complain about poor services from their lawyers – lawyers who fail to return calls, who fail to keep clients informed, who treat clients with paternalism not as intelligent adults. I recently spoke with one CEO who complained that his lawyers ignored his explicit wishes and ended up costing him a critical business relationship by escalating and not ameliorating a dispute. I hear these stories with increasing frequency.

For a long time I chalked these gripes up to a few bad apples or even simply urban legend, but these complaints are not going away. My sense now is that there’s a real problem out there. I think these concerns merit our attention and must be treated seriously, and not dismissed as isolated expressions of dissatisfaction by a few uninformed cranks. I do what I can to correct these misperceptions, but this requires a widespread collective effort. We need the efforts of the bar, the judiciary, the legal academy, and bar associations. We need to root out their causes and vanquish them. There’s much at stake – we need the full confidence of the public in the law, its institutions, and its servants.

I’ve written often here about the fault lines in the ADR profession – the deep rifts dividing facilitative and evaluative mediators, the line in the sand between attorneys who mediate and professional mediators who are not lawyers. These dividing lines damage our collegiality and pose harm to our credibility as dispute resolution professionals; if we are unable to face and address our own differences, how can we be relied upon to assist others?

Other professions are of course no strangers to such schisms. In fact intractable conflict smolders now between lawyers, rooted not in doctrinal or political differences but in generational ones. Adrian Dayton, a lawyer who publishes an eponymous blog, discusses its impact in “Candid exchange highlights a disconnect” in The Buffalo Law Journal.

After describing the rancorous arguing that has ensued between members of different generations of lawyers, Dayton, a Gen Y lawyer, observes:

What does that tell us? That there is a real conflict – and lack of understanding – on both sides. The biggest message I took away from it was that we’d better figure each other out – we’re going to be together for a while.

Dayton has thus signaled his willingness to bridge the generation gap. So what about his counterparts on the other side? No word yet. But if they need some assistance, the blogosphere’s fullofmediators.

Predictably her nomination produced swift reaction: cheering accolades from some quarters and harsh condemnation from others. What caught my own attention was the response of a number of conservative pundits to an article Sotomayor wrote with Nicole Gordon, “Returning Majesty to the Law and Politics: A Modern Approach” (PDF), 30 Suffolk U.L. Rev. 35 (1996), based upon a speech Sotomayor delivered in February 1996 as part of the Donahue Lecture Series, a program instituted by the Suffolk University Law Review to commemorate an honored 1921 alumnus, Judge Frank J. Donahue. A former faculty member, trustee, and treasurer of Suffolk, Donahue served as an Associate Justice of the Superior Court of Massachusetts for 42 years. (As an aside, over the years the Donahue Lecture Series has featured many distinguished speakers, including Chief Justice William H. Rehnquist, Associate Justices Antonin Scalia and Stephen G. Breyer, and Judge Richard A. Posner.)

Sotomayor’s article acknowledges the lack of public confidence in law and legal institutions, due in part to law’s propensity to evolve over time and the uncertainty of its outcomes, and sets forth some modest proposals to restore confidence in the legal profession and the judiciary. Sotomayor recognizes, too, the binary limitations of law, giving alternative dispute resolution a nod:

…the adversary system, almost by definition, cannot address the gray area of the “truth” present in most cases because the system tends to produce all-or-nothing winners and losers. This is why settlements and new forms of “alternative dispute resolution” are so important.

What provoked the heated wrath of several conservative voices? These words:

The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances.

And these:

The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.

And finally these:

…a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction…[referring to cases of first impression]

Sotomayor’s critics are quick to see these as nothing more than secret code, the tell-tale signs of judicial activism, and convincing proof that Sotomayor will make up law out of whole cloth to advance a radical left-wing agenda.

Alas, there is nothing either remarkable or sinister about what Sotomayor has written. She is simply describing what every first-year law student in common law jurisdictions like the U.S. learns during his first few weeks in law school: that law is in flux, gradually but constantly evolving, and that some of it, as indeed it has been for centuries, is the product of judicial decision making not legislative action. At the risk of reproducing here what has rapidly devolved into a tedious cliché through constant repetition, I offer you what jurist and legal scholar Oliver Wendell Holmes said about the law in his best known work, The Common Law:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

On a less lofty, more pragmatic level, the uncertainty of law is well known to its agents, intermediaries, and surrogates: it is what creates leverage at the mediation table. As litigators and the mediators who assist them behind closed doors know full well, the law can be unpredictable, so better trade hope for certainty by settling.

While pundits cannot see it, even the poets know of the mutability of law; I leave you with W.H. Auden’s moving work, “Law Like Love”, which speaks of law’s unknowable and ever-changing nature:

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.

Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.

And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,

No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyvay:
Like love I say.

Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

I spent Mother’s Day weekend in the town where I grew up, visiting my folks. On the drive eastbound home to Boston this morning along the Massachusetts Turnpike, I spotted the sign, hanging from an overpass somewhere past the Charlton service area. Rigged from a white tarpaulin or a bed sheet, it bore the following words, spray-painted in crude red letters:

LAWYERS WANT CUSTODY BATTLES

As I drove on, I thought about the person who painted the large red words and hung the handmade sign above the lanes of cars below in defiance of local authorities. It was not hard to imagine what circumstances drove him or her, on Mother’s Day weekend, to declare war on a system they believed pits parents against each other in a pitched battle for their children.

It might be easy to dismiss the messenger as a lone crackpot with a can of spray paint – except that this is the objection I hear all too often from mediation clients when I remind them how important independent legal advice can be as they weigh the difficult decisions they face. No, they insist, lawyers will make things worse.

A lawyer myself, this depresses me. What happened to make people think the worst of lawyers, to believe that lawyers provoke not resolve conflict? And what are we going to do to change their minds?

Conjuring up the acrid smell of cigar smoke and the clink of glasses filled with single barrel bourbon, the article pays nostalgic tribute to the heyday of the trial lawyer — the palmy days before trials started vanishing (and, judging from the photos of those featured, before women and people of color were better represented at the bar).

Here’s what one of these old lions had to say about mediation, which I present to you in all its unexpurgated glory:

They’ve invented this new term, litigator. What the fuck is a litigator? I’m a trial lawyer. I try cases. There are some lawyers who do nothing but this mediation bullshit. Do you know what the root of mediation is? Mediocrity!

And as for ADR generally?

The move to replace jury trials with mediation and arbitration, he says, is actually an effort by elitists in our society to control how disputes are decided.

Last week I got a phone call from a third-year law student interested in learning more about mediation. Toward the end of our conversation, she told me that her fellow students mocked her interest in mediation practice, dismissing it as “touchy-feely, Kumbaya-singing crap”.

Unfortunately, this contempt for and suspicion of mediation is not an anomaly in the law, although fortunately, too, I encounter it with less and less frequency these days as more lawyers are trained in mediation and more law schools teach mediation advocacy and negotiation skills.

Mediators, however, all too often show a similar disdain for litigation, as fellow blogger and mediator Chris Annunziata pointed out just like week, forgetting that the “alternative” in “alternative dispute resolution” denotes choice, and that sometimes court, not mediation, can be the best choice for disputants.